FWRD,LLC v Corezero Pty Ltd

This decision concerns an opposition by FWRD, LLC to the registration of a trade mark application by Corezero Pty Ltd. The application sought registration for the mark "FFWD" in Classes 9 (data processing software) and 42 (software as a service). The opposition was brought under section 52 of the *Trade Marks Act 1995* (Cth).

The legal issues before the delegate of the Registrar of Trade Marks were whether the Applicant's trade mark application should be rejected on the grounds of opposition raised by the Opponent. Specifically, the Opponent relied on sections 42(b), 44, 58, 58A, and 60 of the Act, although sections 43 and 62A were not pressed at the hearing. The onus was on the Opponent to establish one or more of these grounds on the balance of probabilities, with the relevant date for determination being 26 May 2022.

The delegate considered the evidence filed by both parties, including declarations and annexures detailing the Opponent's use of the FWRD mark in international and Australian retail e-commerce and software applications, and the Applicant's use of the FFWD mark in data processing software. The delegate found that the Applicant's goods and services were the same or closely related to some of the goods and services covered by the Opponent's registered trade mark number 2305681 (the '681 Mark') in Classes 9 and 42. However, the delegate determined that the services of the Opponent's trade mark number 2021138 (the '138 Mark') were not closely related to the Applicant's goods and services, as consumers would not expect providers of retail services to also provide data processing software or software as a service.

Ultimately, the delegate found that the Opponent had not established any of the grounds of opposition. The opposition was therefore dismissed, and the trade mark application was allowed to proceed to registration.